Public Bill Committee

[Frank Cook in the Chair]

Clause 2

Powers to take material in relation to offences

Amendment moved (this day): 2, in clause 2, page 2, line 31, at end insert
provided that the power under this subsection may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest..(James Brokenshire.)

Frank Cook: I remind the Committee that with this we are discussing the following: amendment 4, in clause 2, page 3, line 35, at end insert
provided that the power under this subsection may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest..
Amendment 12, in clause 8, page 15, line 37, at end insert
provided that the power under this paragraph may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest..
Amendment 14, in clause 8, page 16, line 39, at end insert
provided that the power under this paragraph may not be exercised later than six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest..

James Brokenshire: When we broke for lunch, we had started our debate on amendment 2. In some respects, there is an overlap with the previous debate and the ability to take samples from someone who has been arrested. The amendment seeks to add a new provision, so that the power under section 2(1) in relation to fingerprinting should be exercised no later than
six months from the date of arrest or if earlier the date that it was decided that no further action would be taken in connection with the events or circumstances which led to the arrest.
It follows on from the previous debate, in that we need to understand the ability of police officers to take samples from someone who has simply been arrested. The language of clause 2 seems to be open ended. The Minister gave only a brief response on the previous group of amendments, which covered a similar point, so it is important for us to understand how the process works. Similarly, clause 2(4) on non-intimate samples seems to be without time limit.
I alighted on a period of six months in the amendment because I understand that, because of internal requirements, the Crown Prosecution Service normally takes up to six months to decide whether to charge someone who has been arrested in relation to particular facts or circumstances. I question whether that is an appropriate time limit for allowing DNA samples to be taken following arrest. In other words, it should not be some sort of open-ended period. We should alight on something reasonable and appropriate, hence my reason for using the amendmentto probe the Government on some of the detail and to find out whether six months might be an appropriate limit.
It would seem perverse to have an unlimited power to take the fingerprints of those arrested for, but never charged with or convicted of, an offence, beyond any agreed retention period in relation to DNA samples if taken at the outset. In the previous debate, I sought to make the argument that there is a distinction between persons who have been convicted, persons who have been charged and persons who have been arrested.
I appreciate that there was some response, albeit rather swift, prior to lunch. It would help if the Minister said why the Bill seems not to include a specific time limit, similar to that in relation to other provisions, on the specific point of persons who have been arrested and the ability of the police to take samples from them.

Douglas Hogg: This is only a drafting point. I entirely agree with what my hon. Friend the Member for Hornchurch has said, but there is another category of situation in which time could be relevant, and that is when a trial has not taken place but there has been no decision to discontinue. In other words, the prosecution authorities have made the arrest, but have not taken the matter to trial or, in fact, have decided not to have a trial; they are still pondering whether there should be a trial and/or gathering evidence or whatever. That is an additional category to the one mentioned by my hon. Friend, and perhaps it should be reflected in the approach that he takes to the imposition of time limits.

David Hanson: Amendments 2, 4, 12 and 14, which have been tabled by the hon. Member for Hornchurch, would place limitations on new and existing powers in the Police and Criminal Evidence Act 1984 to take DNA samples and fingerprints from people who have been arrested or charged with an offence.
As the Committee knows, clause 2 will allow the police to take fingerprints and non-intimate DNA samples from people who have been arrested for a recordable offence and subsequently releasedthis is the crucial pointeither while they are still on bail and their fingerprints or sample have not already been taken, or if the initial fingerprints or samples taken have proved inadequate for analysis. The amendments would prevent the police in England and Walesthere are corresponding amendments to clause 8 for Northern Irelandfrom taking fingerprints or samples in such circumstances any later than six months after the date of the arrest or earlier.
I hope that this is a straightforward point. I happen to believe that if there is an ongoing investigation, as is the case if a person is on bail or if the police wish to have a further analysis of the samples, the police should be able to take fingerprints or samples from a person after they have been released from custody, even more than six months after the initial arrest. I am of the view, and it is debatable, that new evidence might come to light and that there might be a need for further investigation. Fingerprints or samples might be required from the person in order to prove or disprove their involvement in a particular offence. Therefore, there are reasonable grounds for the power to be enacted.
Clause 6 already limits the power of the police to require a person to attend a police station for the purpose of having their fingerprints or sample taken. I therefore believe that the changes in the Bill are adequate. I cannot offer any further explanation, so I hope that that is satisfactory for right hon. and hon. Members.

James Brokenshire: I am grateful to the Minister of State for that clarification. He highlighted the two limbs and said that, obviously, one of the factors was whether the samples taken had been inadequate. This is something that will come up for other provisions in the Bill. I do not know whether he is able to do so immediately, but can he give the Committee any insight on the frequency with which repeat samples are takenfor example, when a sample has been taken but it is not possible to create a profile from it? It would be helpful to understand whether that is a common issue or the exception to the rule, if I may characterise it like that.

David Hanson: I hope the hon. Gentleman accepts that I cannot give him the figures or the frequency at the moment, but I will certainly look at the issue and write to him, and, if you feel that it is necessary, Mr. Cook, I will copy in other members of the Committee. If the matter is still of concern, it can be returned to in another place or at a different stage of the legislation.

Frank Cook: James Brokenshire.

James Brokenshire: I am sorry, Mr. Cook, I did not want to rise until you called me.
I am grateful to the Minister of State for his clarification of those points. However, it would aid our better understanding of the clause and the amendments if we understood whether samples were required more than once and with what frequency. None the less, in the light of his comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Frank Cook: Perhaps I can offer some clarification. It is important that all members of the Committee who seek to take the Floor should stand up, so that I know when they want to speak; otherwise, you will fail to catch my eye. You stand first and you are called second. We understand that, dont we?

James Brokenshire: We do.

Frank Cook: Good.

James Brokenshire: I beg to move amendment 3, in clause 2, page 2, line 41, at end insert
provided that the power under this subsection may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn..

Frank Cook: With this it will be convenient to discuss the following: amendment 5, in clause 2, page 4, line 7, at end insert
provided that the power under this subsection may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn..
Amendment 13, in clause 8, page 16, line 2, at end insert
provided that the power under this paragraph may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn..
Amendment 15, in clause 8, page 17, line 13, at end insert
provided that the power under this paragraph may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn..

James Brokenshire: We come to what could be described as a further, parallel amendment. The amendment provides that
the power under this subsection may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn.
We have debated the use of the power in relation to those who have been convicted of an offence and, under the last group of amendments, those who have been arrested. The present amendments deal with the right to go back and take samples when someone has been charged with an offence.
The amendment is intended to test Government thinking about the extent to which there should be the right to go back if someone has been acquitted of an offence or the charges against them have been dropped. At that stage, it would be open to someone to ask why the police should come back when no charges are extant against them. The authorities had a clear opportunity to take DNA examples and fingerprints, so what is the justification, now that the person has been acquitted or had the charges against them dropped, for saying that the police can require them to submit fingerprints or a sample? The purpose of the amendment is to test the thinking and logic behind the belief that it is appropriate to cover such an eventuality.
The amendment is also intended to look at the cumulative impact of the three cases that I mentionedconviction, arrest and chargeand to make it clear that when one falls away, the others will also fall away; in other words, we should not continually be coming back to a person. That comes back to the point that we made in the previous debate about someone who has been arrested and charged, but who is then acquitted or who has the charges against them dropped. Again, why should a sample be submitted at that point?
It is important to understand why the provisions are necessary in the context of the clause. The relevant supervising officer can require their utilisation when
taking the fingerprints is necessary to assist in the prevention or detection of crime.
That is quite wide ranging and open and seems to permit what might be described as simple recall exercise. The police might want to recall someone who was previously charged because they did not take a sample at the time and they want to take one now, even though the person is innocent of any charges at that stage and would, in all other circumstances, be regarded as a free person.
I want to probe the Minister on the safeguards that may be required. Is there any potential to push the envelope? As we debated previously, the case can be made much more clearly and effectively in relation to persons who have been convicted. However, I would appreciate hearing from the Minister why it is felt necessary to cover the eventuality of people who have been acquitted or whose charges have been dropped.

Douglas Hogg: I rise again to support my hon. Friend, but I have two suggestions for drafting amendments, so that if the Bill proceeds to the House or another place and Conservative Members table amendments in such terms, my hon. Friend might reflect on my suggestions.
Amendment 3 would insert
provided that the power under this subsection may not be exercised if the person has been acquitted of the offence or the relevant charges have been withdrawn..
As far as it goes, that is perfectly clear, but a situation could well arise in which someone has been convicted of a related offence in the same trial. One should contemplate what the drafting impact would be. It is only a drafting point, but my hon. Friend might care to reflect on it. Converselyif the person has been acquitted of the offence or a related offenceit is quite possible for somebody to be charged with offence A but tried for a slightly different offence and acquitted of it, because alternative verdicts are available. My hon. Friends drafting would not take full account of that. It is only a drafting point, but Committee is for drafting.
My other point is also a drafting point. My hon. Friend is, rightly, saying in effect to the Committee that the power to take samples, specimens or fingerprints should expire on two crystallised events: an acquittal or a decision to withdraw. However, there is a third situation, to which I alluded in the previous short debate. There might be no trial and no decision to withdraw; instead, there might be a period of further reflection, examination and inquiry into evidence. In other words, the case might not be left in limbo, but the decision whether to try might be held in suspension while further investigations are made. My hon. Friend should also address that third situation.
What I have in mindI am drafting on my feetis that if neither an acquittal nor a decision to withdraw applies, the power to take fingerprints should not be exercised at the expiration of 12 months, or any period we like, from the date of the arrest. In other words, we ought to contemplate the situation of suspension and provide an end date beyond which fingerprints should not be taken. Again, it is a drafting point, but what are we here for if not to try to improve the language of the Bill?

David Hanson: The answer is simple. As drafted, the amendments would mean that if a decision not to proceed were taken, it would be impossible for us to return for a viable set of DNA samples from an original that proved inadequate for analysis. I accept that there are few circumstances in which that would be the case, but there might be occasions where a sample does not prove adequate. If the amendment were accepted, with some slight on-the-feet drafting tweaks by the right hon. and learned Member for Sleaford and North Hykeham, it might cause difficulties. I will give an example.
Mark Dixie was convicted of the murder of Sally Anne Bowman based on DNA taken after he was arrested in a pub brawl in 2006, following which arrest he was released without charge. Let us say that in that instance, where ultimately he was released without charge, there was a small percentage of an opportunityI am not even sure of the percentagesthat there was poor analysis of his DNA following his release after charge. Let us say that, in that case, for Mr. Mark Dixie, that 1:1,000, 1:2,000 or 1:3,000 chance, or whatever it might be, the DNA was not properly available for analysis. Under the hon. Gentlemans amendment the DNA database could not subsequently have matched Mr. Mark Dixie, as it did following the murder of Sally Anne Bowman. Mr. Dixie is now serving a 34-year minimum sentence in prison for the murder of that individual.
I acceptthe Committee will have to acceptthat that might be a small, infinitesimal occurrence. [Interruption.] The hon. Gentleman wants to intervene on me, giving the statistics on that. However, if the provision prevents, potentially, one incident from happening, helps bring somebody to justice, gives justice to the victim and helps bring a murdered to trial or put someone away for 34 years, I think that it is worth the candle. I ask the hon. Gentleman to seek leave to withdraw the amendment.

James Brokenshire: I hear clearly what the Minister says. There needs to be a focus, when DNA and DNA samples are taken, on the matches being correct. I accept that there should be provisions to deal with the retaking of DNA in circumstances where, for example, there is a dispute about whether the sample matches the profile and to deal with such eventualities. I understand the logic of the Ministers argument in respect of the need to ensure that adequate records are taken in circumstances where, for example, someone has been arrested in connection with a crime of violence or a sexual offence. However, again, it is a question of whether there should be a long-stop and whether such a matter should be left open for ever and a day. In some ways, my right hon. and learned Friend the Member for Sleaford and North Hykeham was making that point. Even in the example that he gave, that eventuality did not occur: the evidence was there and a conviction was secured. When even the Government are saying that there should be limitations on the period during which DNA records are retained, it therefore follows that there may be an argument for a limit or a long-stop on the period during which further samples can be taken.

Douglas Hogg: I am sympathetic to the point that my hon. Friend makes, but I recognise that the Minister has made a not unworthy point that needs serious consideration. Does my hon. Friend think that one way forward might be to create a statutory presumption, in the terms of his amendment, but give the power in the statute to disapply the presumptive time period on the ruling say of a senior police officer for good and sufficient reason? We would have to find a statutory language that would justify the senior police officer disapplying the presumptive time period. Doing so would thus combine my hon. Friends argument with that of the Minister.

James Brokenshire: I agree with my right hon. and learned Friend and the Minister of State that there are serious issues connected with this matter that should be considered in striking the proportionate, right balance. I am sure that we will discuss that in more detail when we come to the debate on retention and that the Minister will argue for his time period just as we will argue in favour of ours.
There are serious issues to be discussed: I do not demur. I recognise that and appreciate my right hon. and learned Friends suggestion, albeit we need to consider what is simple and understandable; I would not wish unnecessarily to make matters less understandable or more complex.

David Hanson: The hon. Gentleman will know that we are only keeping the samples for six months, which self-evidently indicates, in respect of his concerns, that if we do not know by the end of the six-month period that the sample is adequate, that is a self-defining end period.

James Brokenshire: I understand the Ministers point on taking the sample and keeping it for a six months. However, he is making a separate point, which is that even if the sample had been taken and, perhaps, it was discovered after the six-month period that for whatever reason it was inadequate, there should be some residual or reserved power to come back at that point. I may have misunderstood his point, but that is the essence of what he is suggesting in relation to the clause.
The issue is about understanding the circumstances in which a sample may be deemed inadequate to create a profile that is then retained on the DNA database to allow and permit matching. I will certainly reflect upon what he and my right hon. and learned Friend have said about the provisions, because it is important that we get the detail right. The Committee has heard concerns about striking the right balance in relation to proportionality and whether there is a need to put in place some long stops to achieve that balance. At the same time, we need to recognise that there will be limited circumstances in which we need to analyse in detail whether there should be some reserve or residual power to permit the taking of samples or fingerprints. In the light of the comments made by my right hon. and learned Friend and the Minister, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Douglas Hogg: I beg to move amendment 54, in clause 2, page 3, line 6, leave out from beginning to and in line 9.

Frank Cook: With this it will be convenient to discuss the following: amendment 55, in clause 2, page 3, line 13, leave out cautioned or warned or reprimanded.
Amendment 58, in clause 2, page 4, line 13, leave out from beginning to and in line 16.
Amendment 59, in clause 2, page 4, line 20, leave out cautioned or warned or reprimanded.

Douglas Hogg: Amendments 58 and 59 are very similar in terms of their consequences to amendments 54 and 55. Amendments 58 and 59 relate to non-intimate samples and amendments 54 and 55 relate to fingerprints. The proposition is the same in both cases, namely the circumstances in which either fingerprints or non-intimate samples can be taken.
Clause 2(3) states:
Subject to this section, the fingerprints of a person may be taken without the appropriate consent if (before or after the coming into force of this subsection)
I know I would not like that
(a) he has been convicted of a recordable offence,
(b) he has been given a caution in respect of a recordable offence which, at the time of the caution, he has admitted, or
(c) he has been warned or reprimanded under section 65 of the Crime and Disorder Act 1998 for a recordable offence.
In a previous debate, the point was made that where somebody has been arrested and convicted, all the analysis of past evidence suggests that there is a risk of further offences and so on. The Minister would probably sayI know that my hon. Friend the Member for Hornchurch has said this that when somebody is arrested, that in itself, historically and by looking at the statistics, suggests that they may well go on to commit an offence in the future, which is the justification for taking the fingerprints.
The Bill, however, takes us to a lower level, because it relates to a cautionalbeit in respect of a recordable offenceor a warning or a reprimand. I very much doubt whether there is any statistical evidence that somebody who has been given a cautionalbeit in respect of a matter that he has admittedor a warning or a reprimand can be shown as a matter of empirical evidence to be more likely to commit offences in the future. It may be true of people who have been arrested and it is true of people who have been convicted, but this is a situation of a less grave kind. As I am very cautious about extending the circumstances in which people can have their fingerprints and non-intimate samples taken, I ask myself: is it right to create a trigger point that is less than a conviction? That is the issue for the Committee and it applies to both non-intimate samples and fingerprints. That is the only point that I want to make at this stage.

James Brokenshire: I understand the concerns of my right hon. and learned Friend about this provision, whereby the right to seek samples and fingerprints can be used not simply on the basis of conviction but also on a caution being issued. While he has characterised the situation at a lesser level, an issue will arise relating to the broad way in which cautions are now being used. Some very serious offences, such as rape, are simply being disposed of by way of a caution.

Douglas Hogg: Perhaps my hon. Friend should stand the argument on its head. If one struck out the ability to take fingerprints on the basis of a caution, some of the incentives for the police to proceed by caution would fall away.

James Brokenshire: I understand the sentiment behind what my right hon. and learned Friend says, and I agree that cautions have been overused in the rush to summary justice. The pressures of sanctioned detections to bring of crimes to justice under previous regimes, has led to a situation in which quite serious offending has been dealt with by a legal slap on the wrist.
We argued earlier about using conviction information as a means of identifying what further offending might take place, and we looked at the need to go back and take fingerprints or samples. If someone has received a caution for a recordable offencethat may be a very serious offenceI would be concerned if we could not go back and deal with that category of offender. If one accepts a caution, one accepts liability. There is criminal liability denoted by the acceptance of a caution. That might not be fully understood by everyone who receives a caution; nor might the implications of accepting a caution, and the fact that it may show up on Criminal Records Bureau records in future. Some people have applied for jobs, without appreciating the fact a caution is regarded in the same way as a conviction, only to find that it is very much on the record.
My right hon. and learned Friend makes a fair point about whether cautions have been used too frequently. I get the sense that the Government are beginning to accept that that is the case, and there are reviews into the way that summary justice is being used at the moment. Cautions have been given for quite serious offending, and while I am sympathetic to my right hon. and learned Friends point, because of the way in which this measure has been applied over a number of years, it will be very difficult to exclude this category. His proposal underlines the over-use of cautions, and I appreciate his nudge technique in saying that if this power were withdrawn it would have an impact on future behaviour and the use of cautions by the CPS and the police. We need to be careful because of the way in which this approach has been used previously.
I would appreciate assistance from the Minister on a technical drafting issue. New subsection (6)(b) talks about someone being
given a caution in respect of a recordable offence which, at the time of the caution, he has admitted.
A caution normally denotes admission of liability or guilt, so I am slightly unsure as to whether a separate category is created by adding the words, he has admitted. Would the provision apply only if there was a formal admission at the time of the caution? Are we saying, therefore, that if a caution has been issuedwith an element of admission attachedthere is also the requirement that the person has admitted the offence? I would like to understand whether I am reading into the provision an element that should not be there. Perhaps the Minister of State and his officials might reflect on that.

David Hanson: I shall look into that point with colleagues, perhaps after todays Committee sitting.
I want to make two speedy points on the amendments. Essentially, as the right hon. and learned Member for Sleaford and North Hykeham has said, the amendments would remove caution from the Bill. This is not universal but, sadly, if somebody commits an initial offence, there is statistically more chance of their committing a further offence than if they do not commit an offence at all. Whether we like it or not, individuals facing a caution or a conviction in whatever circumstances, are statistically likely to, at some point downstream, have committed another crime. That does not mean that everyone who commits a first offence goes on to commit several more, but it is statistically more likely. Effectively, by removing that wording from the Bill we are removing the opportunity to include on the database individuals who may show up for further crimes that are not linked in seriousness to the initial crime.
I shall give as an example the case of Wayne Bowe, who in February 2009 got into a fight with 25-year-old Michael Hewitt. Mr. Hewitt was kicked, stamped and, as he lay unconscious, further attacked by Mr. Bowe. The victim remains wheelchair-bound in rehabilitation. He is unable to walk and barely able to speak, and the prognosis is extremely bad. We have his permission to raise the case because he and his family know that Mr. Bowe was caught as a result of DNA from the scene of the crime being matched to the DNA database. Mr. Bowe had some years earlier been arrested and issued with a fixed penalty notice, which is one of the lowest levels of criminal justice disposals. As a result, not only has Mr. Hewitt now got justice, but Mr. Bowe, rather like the killer of Sally Anne Bowman, is not with us today, because since 8 October he has been in prison, where he will be for the next five years and four months, subject to any further legal proceedings. That makes the case for the provision.
I could be universal about the matter; I can listen to the debates. However, if one person is brought to justice as a result of the provision, it is worth retaining it in the Bill. I have heard what both the right hon. and learned Gentleman and the hon. Gentleman have said, but if possible, we should retain the provision for such individuals. We have been able to look at the drafting point regarding new subsection (6)(b) rather more quickly than I had anticipated. The wording on cautions just mirrors the existing wording on samples, and I hope that the hon. Gentleman will be satisfied with our speedy and judicious explanation.

Frank Cook: Impressive.

David Hanson: It came to me in a flash.

Douglas Hogg: I understand the Minister of States argument in respect of the caution, because in the context of the proposed new subsection it points to an admitted offence.
Although my hon. Friend the Member for Hornchurch is right that the number of people who agree to a caution, notwithstanding the reality that they are not admitting the offence, do so for the pragmatic reason of not wishing to appear in a court, there is some inherent intellectual logic in what the Minister of State said. I am not sure that his logic is as powerful when it comes to new paragraph (c), which is the subject of one of my amendments. There we are dealing with a warning or reprimand. I do not think that a warning or a reprimand carries within it an admission by the person being warned or reprimanded that he or she is guilty of the offence. To that extent, the logic that applies to new paragraph (b) is not running in new paragraph (c), because there is no admission.
At the end of the day, I am not going to put this to the vote, as I do not have the troops. In any case, why waste time, because the Government do have the troops? However, I must tell the Minister of State that it is worth reflecting on whether a warning or reprimand, of itself, should trigger the power to take fingerprints and/or samples because it is not of itself an admission. That being so, the argument that a person has been guilty of an offence, so is more likely to do it in future does not run. Subject to those observations, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Hanson: I beg to move amendment 34, in clause 2, page 3, line 20, at end insert
( ) In that section, for subsection (8B) there is substituted
(8B) Any power under this section to take the fingerprints of a person without the appropriate consent, if not otherwise specified to be exercisable by a constable, shall be exercisable by a constable.

This amendment secures that any power to take fingerprints without consent in England and Wales under section 61 of the Police and Criminal Evidence Act 1984 may be exercised by a constable, wherever the power is exercised.

Frank Cook: With this it will be convenient to discuss Government amendment 35.

David Hanson: These are minor technical amendments to ensure that any power to take fingerprints without consent under section 61 of PACE and the Northern Ireland equivalent order can be exercised by a constable whether or not the person concerned is detained in a police station. At present, PACE states that fingerprint-taking powers can be exercised by any constable if someone is detained at a police station. As the new clauses proposed in the Bill will give the police powers to take fingerprints from people who are no longer in police detention, it is important that we make it clear that these powers can also be exercised by any constable. I therefore consider the changes in these amendments necessary and I urge the Committee to support them.

James Brokenshire: As the Minister of State says, this is a narrow and technical amendment. It seeks to ensure that a constable is covered by the provisions in the Bill and, in essence, it makes that exclusive. In other words, by stating that a constable is the specified person to take a sample or fingerprints, no other authorised categories of person could undertake those duties. The explanatory notes state that the power to take fingerprints under PACE may be exercised by a constable whenever the power is exercised. Is it intended to allow anyone else to do so? Is that implied by specifying that it is a constable? Could persons other than a constable be able to exercise these powers? As we know there are other circumstances in other pieces of legislation such as measures on asset seizures where powers that had previously been vested in the police can now be undertaken by accredited financial investigators. Are the Government considering that in relation to this provision, and what case are they making? I am sure that the Minister will be able to respond and say that only constables can use this power, which is why it is being made explicit in the Bill, but I would appreciate that confirmation.

David Hanson: Again, the purpose of the amendments is to amend PACE. Currently, these powers can be exercised by any constable when someone is detained in a police station, but the amendments will allow any constable to exercise these powers when someone is no longer in police detention. That is the purpose of the amendments, to ensure that a constable can do that when someone is not in detention for the reasons that we have mentioned.
If a constable has these powers, they are also available to civilian detention officers appointed under the Police Reform Act 2002. Again, I hope that is helpful to the hon. Gentleman. Essentially, the powers are for a constable to use, along with civilian detention officers as specified.

Douglas Hogg: I am not familiar with this aspect of police work, but does a civilian forensic officer who is working in concert with a constable have the power in those circumstances to take fingerprints and/or non-intimate samples? If the Minister does not know, he can tell us later; I am not demanding an immediate reply. However, he will know that very often forensic officers and scenes of crime officers are not policemen.

David Hanson: I am advised that civilian forensic officers do not have that power and that effectively the power is available to the constable and, as I mentioned earlier, to a civilian detention officer.

Amendment 34 agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Frank Cook: With this, it will be convenient to discuss the following: clause 8 stand part.
New clause 9Repeal of sections 9 and 10 of the Criminal Justice Act 2003
Sections 9 and 10 of the Criminal Justice Act 2003 are repealed..
We got it in the right sequence there.

James Brokenshire: We will get there, Mr. Cook.

Frank Cook: We had better. [Laughter.]

James Brokenshire: I have little doubt that you will ensure that we get there, Mr. Cook.
We now move on to the clause stand part debate. As I have already indicated, there are aspects of the clause that we welcome, including the fact that the Government are showing a shift from their previous approach of simply expanding the DNA database for the sake of it, without consideration of how they were going about that. There is a desire to focus on those convicted offenders, to ensure that the DNA profiles of those convicted of an offence are protected and put on the database.
We had argued for that to happen for quite some time, so we welcome the Governments acknowledgement and acceptance of the need to take this more focused approach, because of the likelihood that it will result in further convictions, more crimes being solved and more people being brought to justice.
We have highlighted some concerns about what might be the wide-ranging and subjective test applied by an inspector in relation to those who have been acquitted, those who have been charged and those who have simply been arrested. However, there is a need to ensure that there are rights to go back to people who have been convicted of offences; in that sense, I hope that this power, by bringing more criminals to book, is an important step forward.
My questions are practical. How do the Government now envisage these powers being used? For example, is there a sense of wanting to prioritise those convicted of the most serious offences? Is it intended that an approach should be taken to work through and identify, for example, people who have been convicted of offences but do not currently have their DNA records on the DNA database? Is the intention to take a more systematic approach? Will there be a focus on people who may already be in custody, as that would seem to be the most effective group to deal with in the first instance?
Does the Minister anticipate that, as a consequence of the provisions and the ability to look back, significantly more DNA profiles will be added to the DNA database in that way? How many would there be and over what time period would that increase apply? Is it the intention that guidance on the use of the power, the exercise of discretion, and how the new provision can be harnessed as effectively as possible, will be issued to police forces? Is there an estimate of additional cost or resource that would be applied to any such guidance?
Obviously, if the intention is for police officers to go back to check records to assess whether they should approach certain individuals to ensure that their DNA data are captured, that will have some resourcing and manpower implications. In respect of what I have mentioned about seeking to bring more criminals to justice, it would be helpful to know whether a more systematic approach is anticipated, to try to bring people to book by means of focusing on the most serious criminals, then perhaps moving forward to other criminals and then working through in an almost programme-type way.
Alternatively, are the Government simply saying that they will look at the issue on a more piecemeal basisif there was some intelligence indication that such action would be appropriate, or if we had not got the DNA of a certain individual and we had to go back? There are two markedly distinct approachesthe provision could be used in an intelligence-led way, or in a more programmed, more systematic way. What is the intention?
The Liberal Democrats have tabled new clause 9, which seeks to delete sections 9 and 10 of the Criminal Justice Act 2003, which itself was an amending provision relating to sections 61 and 63 of PACE. I assume that that is on the basis of overlap and potential conflict, to achieve clarity on the various changes and amendments that may have been made to PACE.
As I am sure the Minister appreciates, when we have lots of amending statutes it is sometimes quite hard to reconcile precisely where we have got to in terms of not having a consolidating statute. I assume that this is an issue of clarity, so that the accumulative amendments can be restated in one place. However, I will listen to the points that are made on new clause 9 to find out whether there are other aspects that were not apparent to me on Second Reading.

Douglas Hogg: If I may, Mr. Cook, I shall dilate a little on an anxiety that I have long had about DNA. I think that it arises properly in this debate, but if you tell me that I am wrong I will sit down, and perhaps we can have the debate later.
I have dealt with DNA quite often in my criminal practice. Perhaps I might tell the Committee about one case and then say what worries me about it. I did a case three or four years ago, and I will call the defendant Mr. X. He was a client of mine who had committed no offences at all before the index offence, 10 years or so prior to his trial. In the event, I think, he committed a very bad rape. In fact, he entered a private house wearing a pillow case over his head and raped a woman in very disagreeable circumstances.
Nine years later, Mr. X was involved in a fracas with a taxi driver and a DNA sample was taken. The original DNA was not really capable of proper profiling, but 10 years later, three or four years ago, the low-copy number technique was better perfected. It was possible to match the DNA, which Mr. X provided after his assault on a taxi driver, with the rape. As it happens, although it was not the only evidence against him, he certainly would not have been convicted without the DNA. The DNA was absolutely decisive. We tried to prove that the low-copy analysis was unsound, but that did not run. He was convicted.
What does that tell me? It tells me, and the Committee, that DNA is a very important detection tool. This chap would not have been convicted without it. It was in many ways a tragic case, both for the victim and, curiously, for him, too. He had not committed an offence before or since, other than the assault on the taxi driver. That is very unusual, as a matter of fact.
The case also tells us that maintenance of the DNA database is a huge deterrent. We all accept that DNA is a huge detection tool and it is also a deterrent, because there are virtually no offences involving individualsrape is an obvious example, but so is common assault, grievous bodily harm, actual bodily harm and so onthat do not involve DNA passing to the victim, or being left on the site. The same applies to almost any offence that is committed by a person who has to enter a premisesone can go on making these points. In other words, DNA is a huge deterrent as well as a detection tool. If that is true, which it is, one asks a difficult question: to what extent should we extend the DNA database rather than confine it? I find myself always oscillating between those two positions.
The police in the evidence-taking session are in the same position as I am: they are subject to public confidence. If I asked myself whether I would mind if the police had my DNA, I think that the answer would be no. I would want provisos in the criminal law that there should not be a conviction on the basis of DNA alone and that there should always be corroboration, but the risk of a mismatch is tiny, although I believe that there was a mismatch in the Enniskillen case. [Interruption.] I see that the Minister is making a face. I think the truth was that the profile was so damaged that although it appeared that there was a mismatch, it was not possible to say positively that there was. It was a chap in Birmingham or somewhere, a young man, who clearly could not have been the person who did the bombing in Enniskillen. It was something like that.
I ask whether the country is right to try to restrict the database as narrowly as we are, or whether we should try to extend it. Left entirely to myself, and subject to the costs and practicalities, which are huge considerationsI do not for one moment suggest otherwiseand if the public were to accept it, I would extend the database for the reasons that I have given. However, I do not think that the public would accept it, and, because we are in the business of reassuring the public, my hon. Friend the Member for Hornchurch, myself and Front-Bench spokesmen are right to confine the circumstances in which samples can be taken and retained.
Let us be clear about this: we are depriving ourselves of a resource that is not just a detection resource but a deterrent, and that is bad news for the criminal law. However, one can move only as fast as the country will accept at any one time, although times may change. That is the one dilemma that I have always had about DNA.
In 1988, I was Under-Secretary of State at the Home Office, at just about the time when DNA was coming forward. It was an interesting time. Things have moved on enormously in the past 22 years and will continue to move on. I hope that we will not wholly shut our eyes to the possibility, in time, of developing a much more extensive DNA database.

Mark Oaten: I do not intend to hold the Committee up. The hon. Member for Hornchurch neatly summed up the reasons why my colleagues and I tabled the new clause.

Question put and agreed to.

Clause 2, as amended, accordingly ordered to stand part of the Bill.

Clause 3

Powers to take material in relation to offences outside England and Wales

James Brokenshire: I beg to move amendment 6, in clause 3, page 5, line 5, leave out from person to may in line 6.

Frank Cook: With this it will be convenient to discuss the following:
Amendment 8, in clause 3, page 6, line 3, leave out from person to if in line 4.
Amendment 22, in clause 3, page 6, line 36, leave out paragraph (b).
Amendment 16, in clause 9, page 18, line 5, leave out from person to may in line 6.
Amendment 18, in clause 9, page 19, line 3, leave out from person to if in line 4.
Amendment 23, in clause 9, page 19, line 34, leave out paragraph (b).

James Brokenshire: Obviously, we have moved on from the previous clause. I hope that the Minister will have an opportunity to write to the Committee with his response to the preceding debate. It was an interesting debate, and I look forward to hearing from him in due course.

David Hanson: Instead of writing to the hon. Gentleman, may I say with regard to the previous clauseI know that we are not debating it now, Mr. Cookthat the Association of Chief Police Officers is considering how the powers will be used. Operation Sheen is examining the extent of previous convictions and bringing the people involved on to the database. I am sure that we can save a letter by referring to those matters in due course.

Frank Cook: Perhaps I ought to explain to the Committee that I was operating on the old adage that silence gives consent.

James Brokenshire: I am grateful to the Minister for providing that information. As they say in many circumstances, silence is golden.
Amendment 6 deals with powers to take material in relation to offences outside England and Wales. My right hon. and learned Friend the Member for Sleaford and North Hykeham has spoken about the interrelationship between offences in other jurisdictions and whether they exist as offences in the UK. Amendment 6 and the associated amendments seek to probe a little further into the rationale for limiting the application of the power to United Kingdom nationals or residents. The provisions for taking relevant samples are clearly limited to those two categories of person, which raises a question about the scope of the clause.
Clause 3 amends section 61 of PACE to give rights to take fingerprints and samples from UK nationals or residents who have been convicted of an offence overseas. What rights exist or are contemplated for the police to take samples from persons in this country who are neither UK nationals nor UK citizens? It might be important and relevant to solving crimes and bringing criminals to justice if foreign nationals in the UK who are not deemed to be resident are suspected of committing an offence. Obviously, suspicion would trigger provisions such as those in section 1 of PACE, but the person might have been convicted overseas. If the Government now seek to use the strategy to which the Minister alluded to receive information from other Governments in connection with overseas offenders in the United Kingdom, what rights exist?
My question about the clause is highlighted in the amendments. Why is the power limited as it is? Should a person who has been convicted of an offence overseas, whether or not they are a UK national or a UK citizen, be subject to the power? The Committee would benefit from the Ministers response on that. If a serious offender comes to the UK regularly but is neither a UK national or a UK resident, they would seem to fall outside the wording of the Bill, even though they might have committed a serious crime in the UK that would be solved if their DNA had been taken, based on the information that an offence had occurred overseas. That is what would happen to a UK national or resident if it were known and the Government and police sought to use the power.
There may be some legal impediment, or some other legal right. There are certainly rights to take DNA and samples from persons entering the UK at the border, but the question is what happens once they are here. I therefore see merit in considering whether the clause should be extended in the way that I have outlined. It would be helpful to hear whether the Government contemplate doing so, or whether they believe that the matter is adequately addressed by other means. As it is now, I am left with that question in my mind, and I am sure that others will feel the same way.

David Hanson: The Committee will be aware that clause 3 applies to a relatively short list of serious offences that are likely to attract long sentences. I understand where the hon. Member for Hornchurch is coming from and hope that I can give him the reassurance that he seeks, as these matters are obviously dear to our hearts, too.
Under current immigration laws, a person who has been convicted of an offence that, if committed in the UK, would be punishable with imprisonment for a term of 12 months or more would normally be refused entry clearance or leave to enter, except in extremely rare circumstances when there might be compassionate grounds for allowing visa entry. The UK Border Agency has advised us that if it is aware that a short-term visitor to the UK from a visa-national country has been convicted of an offence, it would normally refuse the entry requirement. It is certainly aware of the situation and ensures that individuals known to the UK Border Agency do not enter the country. Self-evidently, a range of other issues could arise, but the provisions of the amendment are effectively covered through the work of the agency.

James Brokenshire: I hear what the Minister of State says about UKBA. For example, a visa might not be granted, or there might be checks and the person could be stopped on entry into the UK; other rights, too, could be used in that way. However, if there were an error and it was discovered after the event that the person had not been stopped, there could be someone who was of interestperhaps information had been provided about serious offending overseasin the UK and it would therefore be considered desirable to take a DNA profile.
Is the Minister saying that that is why we need some sort of visa requirement? Perhaps he will expand on the situation for people coming to this country from other EU countries. Of itself, that would not seem to raise the same visa requirements, given the free movement requirements and the other obligations that we are under as an EU member state. What would the situation be in such circumstances? How would that be captured?

Douglas Hogg: This is a rather interesting debate. I am bound to say that I am grateful to my hon. Friend the Member for Hornchurch for focusing on the subject, because I have not addressed the point as carefully as one should. What the Minister of State and my hon. Friend have been talking about is more or less what happens at the borderwhether someone can be picked up on entering the United Kingdom. I can conceive of another set of circumstances.
A foreign Government could hear that someone is a short-term visitor to the UK and say that they would be quite interested to know whether that person is who they think he may be. That could happen for any number of purposes, including extradition and intelligence. I am rather doubtful whether clause 3(1) could be used. Before the fingerprints can be taken, one presumably has to know that the person has been convicted of an offence committed abroadthat appears to be the language of the clause. However, one might be trying to find out whether the person in question is or is not Mr. X. Mr. X may have been convicted, but it might not be known whether the chap staying at the Dorchester is Mr. X. I believe that, in those circumstances, one cannot use proposed new section 61(6D)(a) of PACE, because one does not know whether he is the same person. The question is whether one should be able to.
Should the Bill be redrafted so that we can use the fingerprinting power at the request of a foreign Government to ascertain whether the chap at the Dorchester is the person who has been convicted in the United States of a relevant offence? I do not know, but I think that we should be addressing that question.

David Hanson: I have tried to explain that visitors from countries that require a visa for the UK will already have had a criminal records check as part of the application process. Nationals from countries that do not require a visa may be refused entry on arrival if the UKBA is aware of convictions.
It is self-evident that if convictions come to light post-entry, there is scope to deport. However, if the hon. Member for Hornchurch will withdraw the amendment, I will reflect on his questions, because I am concerned. He has brought to the Committees attention valuable points about those unlikely circumstances in which a foreign national is in the country and the conviction has come to light after entry. As that person could have been here for some time, the retention of DNA may be of assistance generally.
I am not saying to the hon. Gentleman that I will accept the amendment or table one on the subject, but his point is worthy of wider exploration to ensure that we do not do what I know we do not want to do, which is to allow individuals to commit crimes. We want to use the DNA base to ensure that we bring people to justice for future crimes.

James Brokenshire: In the spirit of the right hon. Gentlemans response, and because the matter needs careful review, I accept what he says about wishing to give it further consideration. I alighted upon the problem in my examination of the Bill and there may be other provisions of which I am unaware that provide some other powers to the police in the circumstances we have discussed. I am grateful to him for his assurances. In the light of his comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Brokenshire: I beg to move amendment 7, in clause 3, page 5, line 29, leave out subsections (2) and (3).

Frank Cook: With this it will be convenient to discuss the following: amendment 9, in clause 4, page 8, line 1, leave out from include to a in line 2.
Amendment 17, in clause 9, page 18, line 28, leave out subsections (2) and (3).
Amendment 19, in clause 10, page 21, line 1, leave out from include to a in line 2.

James Brokenshire: The amendment would delete the references to intimate samples and the proposed changes to section 62 of PACE through the insertion the two proposed new subsections. These are testing amendments; I do not intend to press them. They are designed to enable us to understand better the purpose of the provisions.
Given the nature of the searches undertaken, it is difficult to fathom why two or more non-intimate samples would have proved insufficient. How has that approach been alighted upon? We discussed earlier the situation that may arise in relation to insufficient samples being taken. Careful thought has clearly gone into subsection (2). It may have been particularly careful due to the nature of the searches that may be undertaken. It will be helpful to understand what is meant by have proved insufficient and by
non-intimate samples suitable for the same means of analysis
What is intended by that terminology? The other amendments in the group are consequential or mirroring provisions that match changes in clause 9. It will be helpful to know what is meant by the language used.

David Hanson: The amendments would, as the hon. Gentleman described, prevent the police from taking an intimate sample from a person convicted of a qualifying offence outside England and Wales. The powers contain what I hope are significant safeguards on their use.
First, as with all the powers in clause 3, they can be used only following a conviction for a serious offence outside England and Wales. Secondly, as we have said, the police must have taken two or more non-intimate samples and both must have proved to be insufficient for analysis before an intimate sample can be taken. Thirdly, the taking of the sample must be authorised by an officer of at least the rank of inspector. That is an important safeguard.
Finally, as with existing provisions of PACE on intimate samples, the powers in the Bill can be used only with the consent of the person to be sampled. Under section 62 of PACE, it is already possible to take intimate samples where a person is no longer in police detention if two or more non-intimate samples prove to be inadequate for analysis. Clause 3 aims to replicate, with some necessary modifications, the current provisions to allow the taking of intimate samples. If the option for an intimate sample is not available, that could result in a further series of non-intimate samples being taken until a satisfactory profile is derived.
As I said, I consider that the provisions include a number of important safeguards for the individual being sampled. A range of issues relating to inadequacy or unsuitability for analysis could be considered. I am not a scientist and cannot go through the details, but essentially if there is not a sufficient sample to create a profile, that means that it is inadequate or unsuitable for analysis and the matter would need to be re-examined. I think that that is fair. Some means of analysis could be undertaken in relation to a range of points around the DNA. I simply say to the hon. Member for Hornchurch that inadequate or unsuitable samples would not be able to create a profile. There could be problems to do with drugs or alcoholthere are all sorts of reasons. The bottom line is that a judgment is made: have we a sufficient, adequate sample for analysis? If we do, that is fine. If we do not, we need to revisit that. The safeguards in the clause are, I believe, sufficient to deal with the concerns that have been raised.

James Brokenshire: I am grateful to the Minister for his clarification and explanation in relation to the clause. In the light of his comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to discuss clause 9 stand part.

James Brokenshire: I rise briefly to test the Ministers comments on the previous utilisation of the powers and the fact that ACPO is developing a protocol and procedures for utilising the powers in clause 2. Can the Minister confirm what the intention is on clause 3? Will the programme that ACPO is developing equally apply to the provisions in clause 3? Also, what discussions has he had with colleagues in Europe about the utilisation of the PrĂ1/4m treaty in relation to obtaining information or data from other European authorities?

David Hanson: As I have said, ACPO, under Operation Sheen, is considering a range of issues under clauses 2 and 3. I have not had any discussions with European counterparts in relation to the operation of the provision the hon. Gentleman mentioned. I will check whether any officials have had contact, because I would not wish to mislead the Committee on the actions of the Government as a whole. I certainly have had no discussions with colleagues, although we have discussed with ACPO the legislations implementation and use. I hope that that is sufficient explanation for the hon. Gentleman.

Question put and agreed to.

Clause 3accordingly ordered to stand part of the Bill.

Clause 4

Information to be given on taking of material

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to discuss clause 10 stand part.

James Brokenshire: The clause appears to provide for different information to be incorporated on custody records, notably the power under which fingerprints are taken and whether authorisation of the court has been required. The explanatory notes say that the clause re-enacts provisions of PACE, although I should be grateful if the Minister of State clarified why it is felt that there is a need for a change, given that that power exists under section 61(7) of that Act, which incorporates a requirement to explain the reasons for the search. That requirement has been maintained and two specific issues are being added in relation to the power under which the fingerprints are taken and the authorisation is made.
Will the right hon. Gentleman explain why it was felt necessary to add those additional points? Was that information already being recorded in some other way and is this simply a form of codification or clarification to put that on a statutory footing? I want to understand the significance and importance of the provision, what data sets are likely to be captured, and the implications for bureaucracy and so on of the collection and utilisation of the new information fields.

David Hanson: I try to help not just the Committee but the general public, as do my officials. The changes have been made to re-enact the provisions on information because of changes that we are making to the 1984 Act in other parts of the Bill, and to consolidate the existing information requirements so that they are easier for everybody to understand, in the event that both Houses of Parliament support it. There are no particular changes. The clause consolidates the information, so that those who have to implement the provision understand our intentions fully. I hope that that helps.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5

Speculative searches

Mark Oaten: I beg to move amendment 102, in clause 5, page 9, line 3, at end insert
(1A) In section 24 of the Police and Criminal Evidence Act 1984 (arrest) after subsection (6) there is inserted
(7) For the avoidance of doubt, the taking of fingerprints, impressions of footwear and intimate and non-intimate samples is not, on its own, a reasonable ground for believing that it is necessary to arrest a person..
Again, I do not intend greatly to delay the Committee, because the amendment is pretty self-explanatory. We are concerned that arrests may be taking place with the simple purpose of trying to obtain DNA, fingerprints and other forms of identity. We want the wording to be extremely tight, which is why the amendment suggests using the words,
For the avoidance of doubt.
It will help us if the Minister gives some reassurances that any practice of arresting an individual for that purpose alone is not the Governments intention.

James Brokenshire: It would be helpful if the Minister responded to concerns that have been highlighted publicly about whether arrests are being made simply to obtain DNA records, and explained what guidance is given to police. It would seem odd and perverse if the power was being used in that way, so I have some sympathy with the amendment tabled by the hon. Member for Winchester. We need to set out clearly that if there is suspicion for an arrest, it enables DNA to be taken. There are other provisions that allow for DNA to be taken in other circumstances following arrest, charge or conviction. It should not be the other way around. In other words, if one arrests someone and obtains their DNA, there has to be suspicion to facilitate the arrest in the first place. I think that is clearly stated in law, but the suggestions of certain organisations that it is not the case are of concern. I understand why the hon. Gentleman has tabled the amendment and would welcome a response from the Minister.

David Hanson: I am grateful to the hon. Member for Winchester for allowing me to say that in no circumstances is anyone arrested simply to put their name on the DNA database. That is not the purpose of this or any previous legislation. The amendment is not necessary, because under PACE there are already clear criteria for the grounds on which an individual can be arrested; section 24(4) notes that an arrest by a constable has to be on reasonable grounds. I understand that assertions have been madean ex-officer, for instance, has made comments to that effectbut I assure the Committee that there have to be strict grounds for arrest, and the simple collection of DNA is not, never has been and never will be one of them.

Mark Oaten: I am grateful to the Minister for clarifying the issue in such clear language. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Frank Cook: With this it will be convenient to discuss clause 11 stand part.

James Brokenshire: Clause 5 makes amendments to section 63A of PACE to allow speculative checking against other information held by the relevant organisation. The changes will be inserted after section 63A(1D) of PACE, which indicates that subsection (1D), which centres on provisions relating to samples that have been volunteered by an individual, will remain in the Act. Subsection (1C) states that where
fingerprints, impressions of footwear or samples have been taken from any person in connection with the investigation of an offence but otherwise than in circumstances to which subsection (1) above applies
which is the situation relating to arrestand
that person has given his consent in writing to the use in a speculative search of the fingerprints...or of the samples and of information derived from them, the fingerprints...or, as the case may be, those samples and that information may be checked against any of the fingerprints...samples or information mentioned
in the preceding paragraph.
The significance of that is that subsection (1D) states:
A consent given for the purposes of subsection (1C) above shall not be capable of being withdrawn.
We have had a debate on information and on samples that have been volunteered. The substantive provision as outlined in section 63A of PACE seems to suggest that if one has volunteered a sample, ones consent cannot be withdrawn. Even so, the Government have said that is not the case in respect of provisions dealt with elsewhere. There may be some conflation with other provisions that deal with volunteered samples, but I am worried that under subsection (1D), which is flagged up by clause 5, consent could not be withdrawn if, when an offence has been committed, someone who has not been arrested provides a sample to assist with inquiries because they are willing to allow it to be run against a speculative search against other databases. How limited is that? Should they be able to withdraw their consent? It is suggested in other circumstances that consent should be capable of being taken away, so it should be able to be withdrawn.
The references in clause 5 flag that up, so it would be helpful if the Minister would clarify the Governments intentions regarding samples that may have been volunteered or provided when consent was given by someone who had not been arrested. What would be the approach if that person subsequently decided that they wanted to withdraw their consent? My understanding is that the Government accepted that consent could be withdrawn, but I may be misreading part of the Bill, so I would welcome the Ministers response.

David Hanson: I hope that I can help the hon. Gentleman. On page 47 of the Bill, new section 64ZL (3) states:
Consent under this Article can be withdrawn at any time.
If that provision is accepted, it will apply to clause 5.

James Brokenshire: I am grateful to the Minister for highlighting new section 64ZL. It refers to article 64, and I presume that is a reference to the Northern Ireland legislation rather than to the Police and Criminal Act 1984, but it does not seem to refer to section 63A. It refers to articles 64 and 61(6) (a), but not to section 63A. It may deal with other provisions, but I question whether that is sufficiently wide to capture section 63A. It may do so, and I am grateful for the Ministers clarification, but I am not clear about the numbers and numerics.

David Hanson: I am advised that the new section does capture that provision, and I hope that reassures the hon. Gentleman.

James Brokenshire: I am grateful to the Minister, and if that is the case, it is on the record. The numbers were somewhat confusing because they did not seem to tally. I am grateful for the Ministers response.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6

Power to require attendance at police stateion

James Brokenshire: I beg to move amendment 10, in clause 6, page 10, leave out lines 26 to 28.

Frank Cook: With this it will be convenient to discuss the following:
Amendment 11, in clause 6, page 12, leave out lines 31 to 34.
Amendment 20, in clause 12, page 23, leave out lines 25 to 27.
Amendment 24, in clause 12, page 25, leave out lines 25 to 28.

James Brokenshire: The clause relates to a power to require attendance at a police station. The amendment would delete the provision relating to a person subject to a control order. In many respects, its purpose is to test and clarify the Governments thinking on control orders and alternatives that may be available to deal with the serious issue of information suggesting that someone is suspected of a potential terrorist act.
The Minister will be aware that this has been a fairly live issue in the courts and has been debated generally. He is seeking powers to compel a person subject to a control order to attend at a police station pursuant to the provisions of the Bill. We have warned the Government many times that control orders are not working, and that we would launch a full review of the control order system with a view to reducing reliance on it. The Government have maintained the position that they see no need to do that. They see the effectiveness of control orders, notwithstanding a number of recent cases. We had one only a few weeks ago, when two control orders were raised in the High Court and their effectiveness questioned.
The Home Affairs Committee this morning published a report questioning the use of control orders. On page 20, the report states:
Control orders no longer provide an effective response to the continuing threat and it appears from recent legal cases that the legality of the control order regime is in serious doubt. It is our considered view that it is fundamentally wrong to deprive individuals of their liberty without revealing why. The security services should take recent court rulings as an opportunity to rely on other forms of monitoring and surveillance.
There is a need to review the current use of control orders; there are other mechanisms that may be addressed. The Home Affairs Committee focused, for example, on the admission of intercept evidencesomething the Conservatives have highlighted. It is interesting to note the powers in the Bill for maintaining the control order regime, seemingly without any reflection or consideration of their utility. In considering whether it is appropriate to retain those provisions in the Bill, I would like to hear the Governments latest position and in particular their response to the criticisms raised by the Home Affairs Committee.

David Hanson: The hon. Member for Hornchurch is raising a wider debate on the use of control orders and wants me to respond to those matters. If you think it in order to do so, Mr. Cook, I am happy to respond to the general points that he has made, while addressing the amendments.

Frank Cook: That will reduce the clause stand part debate.

David Hanson: I am happy to reduce the debate entirely, Mr. Cook, as you know.

Simon Burns: The Minister is back-tracking.

David Hanson: I am all for parliamentary scrutiny if anyone wants a discussion, but I think my hon. Friends are very happy to allow the Bill free passage in due course. Let us not go there for the moment.
The Committee will be aware that there is a control order regime in place and that on Monday we had a report on the review of control orders from Lord Carlile. In my view, a control order is a valuable tool in helping to prevent terrorist activity, where there is sufficient information for it to be put in place, subject to all the legal support and hoops it has to go through.
The hon. Member for Hornchurch will be aware that as of 10 December last year we have 12 control orders in place. We have had only 45 control orders in the entirety of the control order regime. I think it is a valuable tool in the fight against terrorism, but the Committee does not need to take my word for it. Lord Carlilewho is independent of Government and not a member of my political partyscrutinises these matters very strictly and has said that there would be a damaging effect on national security if the control order regime were removed. From my perspective, there is a clear need for the control order regime to stay in place.
The Bill is not about introducing new powers related to control orders. Parliament agreed the powers in 2008. We have the S and Marper judgment. The provisions in the Counter-Terrorism Act 2008 have not yet commenced. Amendments 10 and 11 would delete paragraphs 4 and 12 of the new schedule to PACE. The practical effect of the amendments would be that a constable could no longer require a controlled
person to attend a police station for the purpose of taking
fingerprints or non-intimate samples.
I rest my case. People are placed under control orders because they could be undertaking activity that we believe to be extremely serious. The control order is a very serious power and is subject to external scrutiny and a number of legal hoops. If the amendments were accepted, we might not be able to secure non-intimate samples or fingerprints from such individuals, because they would not be able to attend the police station.

James Brokenshire: Is the Minister saying that the power is new? In terms of the consideration of control orders, it is an interesting question whether the power is simply a codification of an extant power or whether something new is being added. I may have misunderstood him.

David Hanson: I will come to that point in a moment, if I may.
The powers are contained in other amendments to PACE made by the Counter-Terrorism Act 2008. If we accept the hon. Gentlemans amendments, those powers will be removed, so a constable would not be able to require a controlled person to attend a police station for the purpose of taking fingerprints or non-intimate samples.
I accept the need for control orders and for certain individuals to be required to attend a police station. I believe that the amendments will principally cause practical problems and will not ultimately stop the operation of the controlled persons activity by the police.
The amendments would also create a technical anomaly, in that they address the position only in England, Wales and Northern Ireland. Because the control orders fall under the Counter-Terrorism Act 2008, the amendments would create a difficulty in relation to Scotland. I ask the hon. Gentleman to reflect on those commentsI hope they are helpful, because that is the spirit in which I try to approach the Committeeand withdraw the amendments.

James Brokenshire: We will reflect on what the Minister said about control orders. I hear what he says about utility and the statements of Lord Carlile, but as I highlighted at the outset, we believe there is a need to bring those suspected of terrorist acts to justice where possible by using intercept evidence. That is the difference between us in terms of the approach to be taken.
We believe that a review of the existing control order powers and their use is necessary. That will obviously have all manner of impacts, potentially including effects on the provisions to which the Minister has alluded, but I recognise that that debate is slightly wider than the power to require the attendance of those subject to control orders at a police station for the taking of non-intimate samples. In the spirit of the Ministers comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mark Oaten: I beg to move amendment 101, in clause 6, page 13, line 16, at end insert
15A Fingerprints and non-intimate samples may only be taken under sections 61(5A), 61(5B), 63(3ZA) and 63(3A) from a person at a police station..
The amendment speaks for itself. I seek clarification from the Minister that fingerprints and samples may be taken from a person only at a police station. He will forgive me; I do not have enough knowledge of the Bill to know whether it includes examples of situations in which samples could be taken on the street instead.
We seek absolute clarity that under the provisions, it will be possible to take DNA samples only within a police station and they cannot be taken in the street or where the arrest takes place. The obvious concern is the security of the samples if they were not taken in a police station setting. I seek reassurances from the Minister about the process in such circumstances and a guarantee that he agrees that a police station is the most appropriate place in which to take such samples.

James Brokenshire: I rise to speak briefly to amendment 101. My understanding is that the power that is being created by clause 6 relates to the requirement to attend at a police station for a non-intimate sample and fingerprints to be taken. As I read it, it is a means of ensuring that the other powers contained in the Bill to enable relevant non-intimate samples to be taken should be used in that sort of environment.
The hon. Gentleman raises an interesting point as to whether simply because someone can be compelled to attend at a police station for a sample or a fingerprint to be taken, that is viewed as being exclusive or restrictive and what the development of practice is in connection with the taking of samples. Are we looking at things like mobile custody suites and, if the amendment were accepted, would it be sufficiently wide to cover what we mean by a police station? Would some form of mobile custody suite in the community or within a shopping area, which is what is being suggested at the moment, be covered? Is it intended that there should be the capacity to take samples or fingerprints in such an environment?
In flagging up the issue and saying that a sample can only be taken at a police station, the hon. Gentleman is asking the Committee to consider whether it would be more practical to look at other environments, provided that appropriate standards are maintained. The possibility of contamination would have to be considered. The environment in which samples are being taken has to be of an evidential standard in order to create a profile on the DNA database along the lines that we have debated previously in Committee. If we are seeking to provide that someone attends at a particular place, there should be clarity in the Bill. I agree with the concept of stating that it should be at a police station while recognising that the hon. Gentleman has raised some interesting points as to where technology may be taking us and whether in future, if the legal and forensic standards are met, samples could be taken in a setting outside the police station.

David Hanson: The amendment would mean that only samples taken without consent could be taken at a police station. The hon. Gentleman has asked a legitimate question about the circumstances under which that could be undertaken elsewhere. There are three such circumstances: court, prison or mental health hospital. There are also, as the hon. Member for Hornchurch has indicated a growing number of circumstances where that might happen on the street. We currently have mobile units operating in places like the Notting Hill carnival because there might well be arrests there and the police on duty would be required to remain on duty at that locality rather than returning to a police station elsewhere. There are a number of circumstances where that could be case.
I hope that that satisfies the hon. Gentleman. If it does not, can I tell him about one other matter which I hope will help the Committee? Wherever a sample is taken, it will be sealed for evidential purposes in front of the person from whom it has been taken. That sample is taken away to the forensic laboratory and is only unsealed there. Therefore, wherever the sample is taken, that process is the same. Although the provisional security of a police station might seem appropriate, the same principle would apply to a mobile unit at the Notting Hill carnival. If the bag was unsealed on arrival at the forensic laboratory, there would have been major contamination and the sample would not be valid. I hope that that addresses the hon. Gentlemans genuine concerns.

Mark Oaten: I am grateful to the Minister of State for that explanation, but it does not entirely satisfy my concerns. I entirely take the point about prisons, courts and buildings that are used for other criminal justice purposes, including a mobile police unit at the Notting Hill carnival. Will the Minister of State consider a form of words that says that the procedure could be carried out in a police station or a designated location? Designated would imply that it had been made clear that the work could take place in the location. I seek to rule out DNA being taken in the back of an individuals car or in a side street in the middle of a riot. That would be inappropriate, and could give rise to concerns about contamination and security. Those are not the most appropriate locations. However, I accept the Minister of States point that police station is too narrow. If we had or designated location, that would overcome my concern about the procedure happening in what I think we would all agree are not ideal circumstances, and it would meet the Minister of States objective of using a prison, court or that kind of criminal justice setting. There is a way forward.

David Hanson: I hear what the hon. Gentleman says. I hope that I have assured him that sample security is the most vital aspect here, because ultimately the quality of the conviction downstream depends on the quality of the sample. It is not in anybodys interests in the criminal justice system to have contaminated samples. My hon. Friend, the Under-Secretary, who will deal with many of these matters on a day-to-day basis, has indicated to me that later on technology may have sped up to such an extent that we wish to take samples in other places. I could simply accept the proposal from the hon. Member for Winchester that we have designated centres, but any number of places could be designated and the problem he has raised would not necessarily, therefore, be solved.

Mark Oaten: It would be unlikely, however, that one could, on the spot, designate the back of somebodys car or a street corner. The Minister of States point is a slight red herring. I am trying to rule out that kind of location. There must be a form of words that gives the Minister of State flexibility on location, but rules out such on-the-spot decisions about locations, which could never be designated.

David Hanson: I am always happy to reflect on such matters, but I shall not do so between now and when we complete consideration of the amendment. My view is that the majority of samples will be taken at a police station. There will be samples taken in courts, mental health hospitals and prisons, and in mobile units, and they may be taken at other venues that the police choose for whatever reason, including the persons home if they happen to be housebound at the time. I cannot envisage all possible circumstances, and cannot find a situation wherein the hon. Gentlemans suggestion would help our crucial capacity to get the sample in the first place. The suggestion might, therefore, be too restrictive, but as ever, I shall consider it with officials outside of the Committee. However, I ask the hon. Gentleman to withdraw the amendment today. We could look at the matter as part of the guidance or codes of practice for the police further to any legislative approval. If the hon. Gentleman will allow me, I shall reflect on his points, but I have given him sufficient information to show both the difficulties that we have and our policy objective.

Mark Oaten: On that basis, I look forward to the Minister of States reflections, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.

Clause 7

Qualifying offence

Mark Oaten: I beg to move amendment 100, in clause 7, page 15, line 9, after 2008, insert
other than an offence under section 1 and 2 of the Terrorism Act 2006.
The amendment deals with the more severe qualifying offences in the clause that form the list, including murder, manslaughter and kidnapping. I am concerned about one set of offences within those qualifying offences. As things stand, under the clause the encouragement of terrorism would be regarded as one of the more serious offences.
We have talked in the past about the difference between incitement to terrorism, which is clearly a serious offence. I have no problem with something like that being included, but I am concerned about the phrase encouragement of terrorism, from a freedom of speech perspective, because that that could wrap up some individuals who, while not specifically inciting terrorism, were talking in general speeches about the encouragement of terrorism activities. I am concerned that by including that we are wrapping in a category of individuals who might suddenly find themselves clustered under the group of qualifying offences, which are the more severe ones.
I seek some reassurance from the Minister that we will not suddenly find individuals making speeches that are not incitement to terrorism, but in which they talk about encouragement of terrorism, being caught in this set of offences.

James Brokenshire: I seek clarification from the Minister on the list that would be maintained under the clause. The Government document published at the time of their initial consultation on DNA retention in May 2009 included an annexe containing some 153 different offences, covering in large measure some of the qualifying offences that are now in the clause. In the context of the amendment, it would help me understand the clause if the Minister said how the final list was drawn up, which offences may have been removed, what is the rationale for that list. Perhaps he will mention the incorporation of the range of offences, including those in respect of which the hon. Member for Winchester mentioned his concerns, especially in relation to the encouragement of terrorism and the dissemination of terrorist materials. It would be useful if the Minister told us what the rationale is and told us about the approach taken in arriving at the list incorporating the range of offences in the clause.

David Hanson: It is legitimate for the police to wish to have DNA samples from individuals who are involved in that type of offences that the hon. Member for Winchester mentioned. It is reasonable for us to undertake that.
The proposal in the amendment expressly excludes important anti-terrorism measures from being included in the DNA clause. I consider it appropriate that conviction for such offences abroad should trigger the power for the police to take biometric material from UK citizens or residents on their return to the UK, so that that material may be on our police database. Similarly, a conviction in the UK would attract indefinite retention of the DNA profile.
Let us be clear. I am not against individuals saying that British foreign policy is bad or not agreeing with the way in which the Government approach an issue in respect of Iraq, Afghanistan, the middle east, Palestine, or whatever. That is not what this is about. However, if an individual has been convicted of encouraging terrorism or violent extremism, or if they have convicted of distributing material that indicates that terrorism is a good thing and should be encouraged, then I am sorry but I think that we need to keep some sort of tabs on their DNA, in case that individual who has been convicted of that simple encouragement or that simple distribution of material at some point downstream turns out to have been involved in an incident such as 7/7 or an incident that could further encourage the development of a terrorist plot.
I am sorry if I am a bit illiberal on this issue, but I would rather have such individuals on the database and being checked against activity that is taking place. If such individuals are on the database because they have distributed material or encouraged terrorism and subsequently we find that they have tipped over and undertaken some violent extremism and we are able to get a conviction because of that information on the database, then sorryI am illiberal. I urge the hon. Gentleman to withdraw his amendments.

Mark Oaten: The Minister clearly feels strongly about this issue and I must say that I have some sympathy with the argument that he has advanced.

Frank Cook: I did not follow what the hon. Gentleman said.

Mark Oaten: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Douglas Hogg: I beg to move amendment 67, in clause 7, page 15, leave out lines 10 to 14.
I will be very brief on this amendment. I will not put it to a vote, and if the Committee permits me, I shall withdraw it, but tabling it gives me the opportunity to make a complaint that I frequently make on these occasions, which is that there is no power to amend a statutory instrument.
I accept that it is necessary to have a power given to the Secretary of State to vary the list because, after all, new statutes will be passedinevitably soand it may be thought that those future statutes will create offences that should be qualifying offences. Also, I will say in favour of the Governments provision that at least it is brought under the affirmative procedure rather than under the negative procedure. However, as the Committee will know very well, there is no power to amend a statutory instrument brought under either the negative or the affirmative procedure, with the consequence that if the House approves part, but not all, of the statutory instrument that is then laid under the powers conferred by the Bill, it has to either approve or disapprove the whole of the statutory instrument. That is a very unsatisfactory state of affairs and points to a failure in our procedure.
I have frequently drawn peoples attention to that problem. This is another opportunity to draw attention to it. My point is a short one, namely that statutory instruments that are laid under these order-making powers should be amendable.

David Hanson: The right hon. and learned Gentleman has made a very wide point and it impacts not only on the Bill but on a wider discussion within the House. There are numerous opportunities, through representations to the Speaker and the Leader of the House, to raise such general issues.
All I will say about this measure, for which I am responsible, is that any changes that could be made will be made via affirmative resolution. That means that there is parliamentary scrutiny. If a Committee such as this one chose not to affirm the resolution, a Minister such as I would have to go back and take out the offending measures or amend the Bill accordingly, before undoubtedly bringing it back at some point in the future. So that power is still there.
I fully accept that there is no power to amend statutory instruments and I will not commit to giving such a power under the Bill. However, I understand the point that the right hon. and learned Gentleman has made. If we do not have the options outlined by affirmative resolution, we have to rely on primary legislation. Primary legislation is amendableI accept thatbut it is a rather more cumbersome process when we are dealing with a very fluid situation in relation to terrorism and terrorist activity. I accept the point that has been made, but I cannot accept the point that has been made.

Frank Cook: That has been a very illuminating exchange. [Laughter.]

Douglas Hogg: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clause 8

Powers to take material in relation to offences

Amendment made: 35, in clause 8, page 16, line 24, at end insert
( ) In that Article, for paragraph (8A) there is substituted
(8A) Any power under this Article to take the fingerprints of a person without the appropriate consent, if not otherwise specified to be exercisable by a constable, shall be exercisable by a constable. (Mr. Hanson.)

This amendment secures that any power to take fingerprints without consent under Article 61 of the Police and Criminal Evidence (Northern Ireland) Order 1989 may be exercised by a constable, wherever the power is exercised.

Clause 8, as amended, ordered to stand part of the Bill.

Clauses9 to 12 ordered to stand part of the Bill.

Clause 13

Qualifying offence

David Hanson: I beg to move amendment 48, in clause 13, page 28, line 3, leave out 37, 40, 43 to 50 and insert 37 to 40, 43 to 54.

This amendment brings the qualifying offences in Northern Ireland into line with those in England and Wales (see Clause 7). The offences added are offences relating to child prostitution and pornography and sexual offences involving care workers for persons with a mental disorder.
I start by putting my hands up to the fact the amendment adds to the list of qualifying offences for Northern Ireland six new sexual offences which were omitted from the Bill on introduction but should have been in it. I hope that the Committee will accept that I have fessed up to this heinous crime.

Simon Burns: For the convenience of the Committee, would the Minister like to specify what the offences are?

David Hanson: Certainlyjust so the hon. Gentleman does not try to say that I do not know what the offences are. They are causing or inciting child prostitution or pornography, controlling a child prostitute or a child involved in pornography, care workers being involved in sexual activity with a person with a mental disorder, care workers causing or inciting sexual activity, care workers being involved in sexual activity in the presence of a person with a mental disorder, and care workers causing a person with a mental disorder to watch a sexual act. Those offences should have been in the Bill, and they will be, if the amendment is accepted. I hope that as I have fessed up to the omission, the Committee will accept the amendment.

Amendment 48 agreed to.

Clause 13, as amended, ordered to stand part of the Bill.

Clause 14

Material subject to the Police and Criminal Evidence Act 1984

David Hanson: I beg to move amendment 36, in clause 14, page 28, line 41, leave out arrested for or.

This amendment alters the substituted section 64(5)(b) of PACE to remove the erroneous repeated reference to an arrest under section 41 of the Terrorism Act 2000 as this is already provided for under the substituted section 64(5)(a).

Frank Cook: With this it will be convenient to discuss Government amendments 37 and 38.

David Hanson: The amendments relate to drafting errors in respect of the introduction of regimes for the destruction of fingerprints and DNA materials. Amendment 36 alters the substituted section 64(5)(b) of PACE by removing the mistaken repeated reference to an arrest under section 41 of the Terrorism Act 2000 as it is already provided for under the substituted section 64(5)(a).
Amendment 37 alters the substituted section 64ZK(4)(a) of PACE by removing the erroneous reference to samples and impressions of footwear. Amendment 38 corrects an identical drafting error in the Northern Ireland provisions. I am happy to go into detail if hon. Members wish, but, in essence, the purpose of the amendments is to correct drafting errors. I hope that the Committee will accept the amendments.

James Brokenshire: The Ministers brief explanation has highlighted an interesting point. Government amendment 37 would remove references to samples and impressions of footwear in relation to retention for purposes of national securitythe footwear element is not to be included. It would be helpful if the Minister set out how the utilisation of footwear samples is progressing. That was something that was brought in after PACE. Why do the amendments appear to make that distinction? It is interesting to see the utility of fingerprint evidence, particularly how it is used in, for example, the counter-terrorism fingerprint database, and how that is the primary method by which information is used by the relevant Governments, and how, in this country, we have seen a great increase in the forensic use of DNA material.
The amendment throws up the question about where footwear samples fit into the overall picture. This is a forensic method that has been developed over time. Clearly, the Minister has given some thought to the issues by making the distinction drawn in the amendment, but it would be helpful to understand better how this is now progressing. Is there a footwear database? To what extent has it now grown? How many impressions does it show? I appreciate that impressions of footwear can be an important forensic tool in the context of gang and youth-related violence.
I realise that it is a technical matter, but I would like to understand why the amendment has been drawn up in this way. It may be that there is some disparity in the drafting of the relevant legislation. It would be helpful if the Minister provided further background to how the provisions are expected to be used and why the change is required. Is it simply a legalistic requirement, or is there some greater subtlety or significance that may not immediately be apparent from the amendment and the notes attached to it?

David Hanson: I assure the hon. Gentleman and the Committee that there is no subtlety behind the amendments. The amendments are clearly in place to do what they say on the tin which, in the case of amendment 37, is to remove the erroneous reference to samples and impressions of footwear. The section is intended to provide only for the retention, for the purposes of national security, of DNA profiles and fingerprints, and not of samples or impressions of footwear that must be destroyed earlier
I assure the Committee that there is no footwear database in place in the Government and that there is no use of those impressions outside general criminal investigations. CertainlyI have had it reconfirmed by those we cannot mention in Committee and who support me on these mattersthat there is no database of crime scene footwear marks at all. If the hon. Gentleman wishes, I will look at the Hansard record of the points that he has made and see if there are further points that I need to clarify for him. However, I simply seek to ensure that we change the amendments to PACE, as I have tried to openly say to the Committee.

Amendment 36 agreed to.

James Brokenshire: I beg to move amendment 25, in clause 14, page 29, line 14, leave out sooner and insert later.
We now turn to the destruction of samples dealt with in proposed new section 64ZA of PACE. We welcome the Governments approach in recognising that samples should be kept for a reasonable period only, in order to enable a profile to be derived from them. A wealth of genetic information can found in a sample, so we need to protect it and ensure that it cannot be misused. I appreciate the thinking behind the provisions. They seek to apply certain limits to the period during which DNA samples can be retained, the focus being on creating the DNA profile. It is a sensitive issue.
The amendment is a probing one. There is a desire for profiles to be generated as soon as possible following the taking of the DNA sample. In essence, I understand that it is intended that there should be a six-month long stop. If a profile has not been derived within six months, the police and law enforcement agencies will have missed the chance of doing so.
The provision will obviously have the potential to bring savings on storage costs that might otherwise accrue. At the moment, a significant quantity of DNA material has to be stored as a result of pre-existing searches. In the context of the six-month provision, it would help if the Minister were to say what the cost savings might be if we no longer needed to store the base material, notwithstanding that it would be coded and put on the DNA database as a profile. We need to understand the implications of that. The provision is for a six-month period. Is it intended to have a phased introduction of these procedures? What would be the implication if samples were to be retained beyond six months?
From my reading of the Bill, I assume that there might be limitations on how it could be used. For example, if a sample had not been destroyed within six months, what remedy would there be? If there is a subsequent dispute, outside the six-month period, about whether the profile was derived from the sample, would there be other rights to enable a further sample to be taken to ensure utilisation?
In essence, the amendment is probing. We wish fully to understand the process of the intended six-month long stop and to be sure that it is correctly stated in its current format. I have used this important point to facilitate a small debate on the matter. I welcome the Governments approach, although there will be differences between us on clause 14. However, it would be useful to know about the guidance on roll-out, and what the cost savings and benefits might be as a consequence of the introduction of any such arrangement.

David Hanson: I hope to reassure the hon. Gentleman that the six-month limit is a back-stop provision to ensure that all samples, even those that cannot be satisfactorily, are destroyed within six months. The clause clearly requires that samples be destroyed as soon as the DNA profile has been satisfactorily derived, or in any case no later than six months after the sample is taken. There is a back-stop, it is six months for all samplespartial or otherwiseand that is clear in the Bill.
Inserting the word later would mean that the destruction point would move to six months after taking the sample or later, if at that point the DNA profile had not been satisfactorily derived. The amendment would extend rather than limit the six-month period. I would rather stick with the provision in the Bill. I know that it is a probing amendment.

James Brokenshire: How does the provision interrelate with some of the provisions that we debated earlier on officers ability to go back to someone? Obviously, there would be concerns about abuse of the previous provisions such that if, for example, it was realised very late in the day that there had been a mistake, someone could be constantly going back and, therefore, extending a six-month period by taking a new sample and creating a further six-month window. I do not believe that that is the intention but it will be helpful if the Minister responds to that point.

David Hanson: I assure the hon. Gentleman that that is not the intention. The intention is clear in the legislation; we have a definitive six-month back-stop on the maintenance of the DNA samples prior to profiling. The amendment would extend that period considerably.
On the potential savings, I refer the hon. Gentleman to the explanatory notes, under Financial Effects of the Bill, paragraph 200, it says
There would also be estimated potential savings of £7.8 million...in each of the financial years 2010-2011, 2011-2012 and 2012-2013. There will also be potential one-off savings of £5.1 million
as a result of the provisions, which, in the current financial circumstances, is not an insignificant sum for the Home Office and those in the police service undertaking these activities.

Douglas Hogg: I have an anxiety. I know that the general view, which is probably my view at the end of the day, is that the samples must be destroyed as specified in the Bill. I have made the point about what an important detective instrument the DNA database is. Reverting to the case of Mr. X that I described to the Committee, 10 years ago they took a sample that was incapable of being profiled because it was damaged, but in the course of time the low copy technique came into being and it became possible to obtain a profile from the damaged sample.
We are excluding, by our determination on destruction, the ability of future technology to refine further our ability to profile from existing samples, and it may be that that is inevitable and right; or perhaps we have no choice because of public opinion, but that is what we are doing. We cannot accept that our current technology represents the only and optimal stage. It will develop, as low copy techniques came along from the early sampling methods. Somewhere down the track, we will find that we can take DNA samples from the most damaged and tiniest of specimens, but if we have destroyed them, there will be no evidence. I am right in that analysis.

David Hanson: The right hon. and learned Gentleman is indeed correct. A DNA sample might be destroyed, at the end of the six-month period, that could, when technology progresses in five, 10 or 15 years, lead to a profile that leads to conviction that leads to justice and an imprisonment. I fully accept that that is the case. We have to look at these matters in a proportionate way. Again, as with the remainder of the Bill on the length of time that we are keeping the profiles and the scope of young people and others on the profiles, we are trying to be proportionate in relation to judgments that have been made. We have come to the conclusion that a six-month period is proportionate. We can justify it and, crucially, it gives sufficient time to establish on the basis of our current knowledge a profile in the event of a profile being drawn from that sample. However, I fully accept the point that the right hon. and learned Gentleman makes.

James Brokenshire: I am grateful to the Minister for his response. This is an important issue and I am interested to hear the potential cost savings that might accrue as a result of the changes envisaged here. There will be increasing changes through the use of technology and the destruction should not relate to crime scene profiles or evidence that may subsequently be used for matching. That will be maintained and reflects no change when we are talking about samples. That must be the case. This debate has helped us to understand the approach and the way in which this would be dealt with. Some samples from a crime scene may be fragmented, but as our technology advances it may lead to convictions in due course as we are more able to extrapolate from them. I am grateful for the comments that have been made. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned. (Mr. Watts)

Adjourned till Thursday 4 February at Nine oclock.